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A Brief Overview of Mental Hygiene Law Article 81 Guardianship

Posted by attorney Edward Dowling

As people live longer these days a common problem is a person becomes mentally incapacitated due to Alzheimer’ s or other diseases and thus unable to take care of their personal needs and/or financial needs and thus are in need of someone else to do these things. If the person, before becoming mentally incapacitated, did not sign a General Durable Power of Attorney ( see previous article about basic estate planning documents) then the person will need to have a Guardian appointed by the court.

This is done by someone ( usually a family member, but Article 81 authorizes other people and government agencies such as Social Services ) filing a Petition for the appointment of a Guardian. The person who is in need of a Guardian( called an Alleged Incapacitated Person ( AIP) until proven to be an Incapacitated Person ( IP ) is entitled to be served with a copy of the Petition and to be present at the required hearing and to have an attorney retained by him or if unable to afford one or if so incapacitated as to not understand the proceeding or the need for an attorney, to have one appointed by the court.

The Court will also appoint a Court Evaluator to meet with the AIP and report to the court his opinion of whether the AIP should be declared an IP and a Guardian be appointed.

If the Court Evaluator recommends that a guardian be appointed and if it is proven in court at the hearing that the AIP is indeed an IP, then the court will appoint a Guardian.

The Guardian can be the petitioner if the petitioner is seeking to have himself appointed , or the guardian can be someone else, including an attorney appointed by the court, if the petitioner is petitioning for someone other than himself.

Guardians can be appointed to take care of the personal needs ( such as cooking, cleaning, shopping, dressing, etc. ) and/or for the financial needs ( paying bills, banking etc.) of the IP. The Court, in its decision, will specify whether the Guardianship is for the personal needs and/or financial needs and will issue an order enumerating the specific powers and duties of the guardian. The guardian is only authorized to do those things spelled out in the order, but can apply to the court if he needs an additional power to do something on behalf of the IP. A guardian can be removed for exceeding his authorized powers or otherwise not acting in the best interests of his ward, the IP. A guardian cannot act before receiving his Commission by the court and qualifying as guardian by completing the statutorily mandated training course under Article 81.

In addition to performing the specific tasks and duties according to the guardianship order, a guardian is required to meet with his ward at least 4 times annually and make an annual report to the court regarding condition of his ward and the ward’s financial situation. At the termination of the guardianship ( usually at the death of the ward, but it could also be after removal of the guardian , upon substitution of another guardian ) the guardian must file a final report with the court before being relieved of his duties as guardian.

Watch for future articles in Criminal and Civil Law.

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